FEDERAL COURT OF AUSTRALIA

ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 882

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 18 September 2018 dismissing an application for judicial review of a decision of the second respondent (Authority). The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse the grant of a Safe Haven Enterprise (subclass 790) visa (SHEV).

Background

2    The first appellant (Husband) is a citizen of Sri Lanka. The second appellant is his wife (Wife), the third and fourth appellants are the Husband’s stepsons (Stepsons) and the fifth appellant is the Husband’s biological son, born in Australia. The Wife, the Stepsons and the fifth appellant applied for the SHEV as members of the family unit and did not make their own claims.

3    The appellants arrived in Australia on 4 June 2013, having departed Sri Lanka illegally.

4    Under cover of a letter dated 17 November 2016 the appellants applied for the SHEV. The Husband’s claims for protection were set out in a statement accompanying the application for the SHEV. In summary those claims were as follows:

(1)    in about January 2009 the Husband’s aunt was abducted by the Liberation Tigers of Tamil Eelam (LTTE). Several days later the Criminal Investigation Department (CID) took the Husband to their office, told him that his aunt had joined the LTTE, and interrogated and tortured him because his family were LTTE sympathisers. He was detained for one day and released on condition that he report twice a day;

(2)    every time the Husband reported to the CID he was tortured, including by putting a heavy weight on his shoulders and making him stand in the sun;

(3)    the Husband was working for a company clearing landmines before his arrest by the CID. Upon being arrested his employment was terminated and he was accused by the CID of having hidden weapons;

(4)    the Husband escaped to Vavuniya where he met his Wife and they married in March 2009. The Husband went into hiding for fear that someone would report him to the CID or that the CID would see him;

(5)    in late 2012 the CID, who had been searching for people who had breached their reporting requirements, came looking for the Husband. People in his hometown informed the CID that he had married and was living in Vavuniya and gave the CID his address;

(6)    on 10 January 2013 a masked person came to the Wife’s house and threatened to kill her and the Stepsons if she did not inform him of the Husband’s whereabouts. It was after this incident that the appellants left for Colombo where they went into hiding and made their arrangements to depart Sri Lanka;

(7)    in 2013 the appellants arrived in Australia. After his arrival, the Husband was told by his uncle that his father was part of the LTTE and that he went missing while fighting for the LTTE; and

(8)    in August 2016 one of the Husband’s friends was approached by the CID who had information from the family of the Wife’s former husband. According to the Husband they were seeking revenge because he and the Wife are from different castes and should not have married. The Husband’s friend, who had made arrangements for the appellants to come to Australia, was tortured by the CID and questioned about the Husband’s whereabouts. After this event the Husband’s friend left Sri Lanka. The Husband does not know where his friend went but it was from his new country that the friend contacted the Husband to inform him of what had occurred.

5    On 20 March 2017 the delegate refused the application for the SHEV.

6    On 23 March 2017 the decision to refuse the SHEV was referred to the Authority for review.

7    On 6 and 11 April 2017 respectively the appellant’s authorised representative provided the Authority with a submission and a letter dated 6 April 2017 from Auburn Health Care Centre with photographs of scars on the Husband’s body.

8    On 16 October 2017 the Authority affirmed the delegate’s decision not to grant the SHEV.

Authority’s decision

9    The Authority accepted that the Husband was raised by his paternal aunt because his parents were both with the LTTE and that he had not seen his parents since he was a young child. The Authority also accepted that the Husband and his aunt were both LTTE supporters but, on the evidence, considered that the Husband’s LTTE involvement was of a low level. While the Authority considered it to be implausible that the Husband did not know about his parents’ history with the LTTE until after his arrival in Australia, it was prepared to accept his claim about that.

10    The Authority accepted that from 2007 to 2009 the Husband worked for an international de-mining group clearing landmines in the Northern Province.

11    The Authority accepted that in January 2009 the LTTE forcibly recruited the Husband’s aunt; that he does not know what happened to her; and that several days later the CID detained the Husband overnight and interrogated him about his aunt and where the LTTE had hidden weapons, and accused him of being an LTTE supporter. The Authority also accepted the Husband’s evidence about the requirement that he report to, and his mistreatment by, the CID.

12    In relation to the Husband’s marriage to the Wife the Authority accepted that:

(1)    the Husband and Wife met when the Wife lived in Manthuvil prior to 2006;

(2)    after the Wife’s former husband left her, she relocated with the Stepsons to Vavuniya;

(3)    upon arrival in Vavuniya the Wife allowed the Husband to move into her house as he had nowhere to go. They were married a few days later;

(4)    they could not register their marriage with the authorities because of the uncertainty surrounding the whereabouts of the Wife’s former husband, but the Husband obtained an unofficial “marriage slip” from the local village administrative officer; and

(5)    the Husband became the de facto stepfather of the Stepsons.

13    The Authority did not accept that:

(1)    the Husband had been forced to sign a confession while in the custody of the CID which said he was being investigated because he was from an LTTE family. The Authority found that the Husband’s evidence to the delegate on this issue lacked detail and was unconvincing;

(2)    the Husband had been in hiding for an extended period following his marriage to the Wife;

(3)    the Wife’s family did not accept their marriage;

(4)    in late 2012 residents of Manthuvil or the Wife’s family informed the CID that the Husband was living in Vavuniya because they disapproved of their marriage;

(5)    in January 2013 an unknown person came to the family home in Vavuniya and threatened to kill the Wife and the Stepsons unless she revealed the Husband’s whereabouts;

(6)    following the incident referred to in the preceding subparagraph the family fled to Colombo and remained there in hiding for four months prior to departing for Australia;

(7)    given the Husband’s lack of profile the CID would resume interest in him in late 2012 or early 2013 because he breached his reporting requirement prior to the end of the civil war in May 2009;

(8)    the Wife’s former husband, having returned to Sri Lanka from overseas and wishing to regain custody of the Stepsons, had given the Husband’s details to the CID and, as a result, the CID threatened and tortured the Husband’s friend in Sri Lanka who was then forced to flee; and

(9)    because the Husband and Wife are from different castes, people in the Manthuvil community want them to disappear.

14    In light of its findings in relation to the Husband’s past experiences and country information the Authority did not accept that the Husband faced a real chance of serious harm upon return to Sri Lanka. It was not satisfied that the Sri Lankan authorities would have any continuing interest in the Husband because of his ethnicity, age, origin, actual or perceived links to the LTTE, his failure to have reported to the CID in 2009 or his scarring, or that the Wife’s family, including her former husband, had given information about the Husband to the authorities. For the same reasons the Authority was not satisfied that the Wife or the Stepsons, by reason of their relationship with the Husband, or on account of being Tamils from a former LTTE area, would face a real chance of serious harm.

15    The Authority also considered whether the Husband was owed protection as a result of his and his Wife’s and Stepsons’ illegal departure from Sri Lanka. The Authority referred expressly to the submission made to the delegate that the Husband has a profile with the CID and, while he may not be detained on arrival, he may be detained later. It dismissed this submission having regard to country information about what usually occurs on arrival and given its previous finding that the Husband does not have a profile with the authorities.

16    The Authority accepted that the Husband and Wife may be charged under the Immigrants and Emigrants Act and that there was a chance they may be held in detention for a short period. Noting that the Husband failed to report to the CID in Jaffna in 2009 as required, it was not satisfied that the Husband and Wife were anything other than ordinary illegal departees when they left Sri Lanka in 2013. While the Authority accepted that there was a real chance that the Husband and Wife would be questioned, fined and held briefly as part of the re-entry process, it was not satisfied that they would face greater scrutiny or penalty upon return than other persons returning to Sri Lanka who left illegally. The Authority was not satisfied that routine questioning at the airport upon return, to which all persons who depart illegally are subjected, amounts to serious harm.

17    The Authority also considered the children’s circumstances. It accepted that they would be present when the Husband and Wife were processed under the Immigrants and Emigrants Act upon arrival in Sri Lanka but did not accept that that would amount to serious harm or systematic and discriminatory conduct for the purposes of s 5J of the Migration Act 1958 (Cth) (Act).

18    The Authority concluded that the appellants did not meet the requirements of the definition of refugee in s 5H(1) of the Act and thus did not meet the requirements of s 36(2)(a) of the Act.

19    The Authority also considered whether the appellants were owed protection obligations under s 36(2)(aa) of the Act. It relied on its anterior findings of fact in relation to the Husband’s claims and determined that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants being removed from Australia to Sri Lanka, there was a real risk that they would suffer significant harm. Accordingly, it concluded that the appellants did not meet the requirements of s 36(2)(aa) of the Act.

Federal Circuit Court PROCEEDING

20    By an application lodged on 26 October 2017 the appellants sought judicial review of the Authority’s decision in the Federal Circuit Court. On 22 May 2018 they lodged an amended application which advanced six grounds of review. Ultimately they did not press grounds 1 and 6 and relied only on grounds 2 to 5 inclusive. Those grounds, omitting particulars, are as follows:

Ground 2

The Authority accepted that the father and uncles were involved with LTTE (IAA at [29] - [31]). The Authority has failed to engage with the LTTE activities of the father and give cumulative consideration of the risk to the Applicant and ask the correct question. The Authority has committed jurisdictional error.

Ground 3

The IAA made a jurisdictional error in considering the Applicant’s return. The First Applicant was required to report daily and someone who had LTTE connections (parents, auntie) who left Sri Lanka illegally. The Applicants (in particular First Applicant) are not ordinary persons returning to Sri Lanka who had left illegally (IAA at [54]). The Applicant’s role with the NGO was not given realistic consideration. The finding that the First Applicant did not have a profile (IAA at [50] is illogical, irrational and/or unreasonable.

Ground 4

The IAA’s rejection of the Applicant’s claims turned on trivial matters. The IAA made a jurisdictional error in considering the Applicants credibility.

Ground 5

The IAA misconstrued the Applicant’s claim and misdirected its inquires (IAA at [31] – [36]. The IAA erred in rejection of the Applicant’s claims. The question was not whether one was high case and one low caste but the problem that arose between the inter-caste marriage that the Applicants claimed. The IAA has not dealt with whether the brother was supporting solely or supplementing the Applicant.

21    In relation to ground 2, the primary judge found that the Authority expressly referred to the United Nations High Commissioner for Refugees (UNHCR) Guidelines and that there was no proper basis to infer that it did not take into account and give genuine consideration to the Husband’s claims and submissions. The primary judge held that the Authority considered the Husband’s claims cumulatively, that it made dispositive findings in relation to the whole of the integers of the Husband’s claim to fear harm as a result of familial LTTE links and that no jurisdictional error was made out.

22    In relation to ground 3, the primary judge found that it was clear that the Authority had taken into account the appellant’s role with a non-governmental organisation. His Honour noted that the Authority referred to the Husband’s background in its reasons and held that there was no unreasonableness in the Authority’s assessment of the Husband’s claims as a returning asylum seeker. The primary judge concluded that, in substance, ground 3 reflected a disagreement with the Authority’s adverse findings, which were open to it, and that no jurisdictional error was made out.

23    In relation to ground 4, the primary judge found that the matters relied upon by the Authority were not trivial as alleged but were relevant to and probative of its credibility findings.

24    In relation to ground 5, the primary judge found that the Authority’s reasons did not reflect any misunderstanding or misconstruction of the Husband’s claims. His Honour noted that the Authority made adverse findings in relation to the Husband’s claims expressly referring to the claimed fear of harm from the Wife’s former husband and by reason of being from different castes. The primary judge held that no misdirection as alleged was made out and that, on a fair reading of the Authority’s reasons as a whole, the Authority correctly understood the Husband’s claims and made dispositive findings in relation to them.

The appeal

25    By notice of appeal filed on 3 October 2018 the appellants raise three grounds of appeal as follows:

Ground 1

His Honour should have found that the IAA misconstrued the Appellant’s claim and misdirected its inquiries (IAA at [31] - [36]). The IAA erred in rejection of the Appellant’s claims. The question was not whether one was high case and one low caste but the problem that arose between the inter-caste marriage that the Appellants claimed. The IAA has not dealt with and made appropriate finding regarding the caste claim. The IAA has simply re-cast and restated the Appellant’s claims but has not made any findings. His Honour should have found that the IAA committed jurisdictional error.

Particulars

(a)    His Honour should have found that the IAA has not made appropriate findings. His Honour fell into error when His Honour found that the claims have been disposed of by the IAA.

(b)    His Honour should have found that the IAA misconstrued / misdirected itself as to the correct question (the Appellant has not been provided written reason and will provide further particulars upon receipt of written judgment).

(c)    The Appellants’ claim turned on the fact there was friction in finding the Appellants were not credible on minor inconsistencies such as time of marriage and where the Appellants lived (IAA at [33].

(d)    His Honour erred in failing to find that the IAA had not committed jurisdictional error in affirming the fast track reviewable decision.

Ground 2

His Honour should have found that the Authority failed to intellectually engage with the LTTE claims. The Authority accepted that the father and uncles were involved with LTTE (IAA at [29] - [31]). The Authority has failed to engage with the LTTE activities of the father and give cumulative consideration of the risk to the Appellant and ask the correct question. The Authority has committed jurisdictional error.

Particulars

(a)    The Authority accepted the Father’s involvement with LTTE (the Appellant has not been provided written reason and will provide further particulars upon receipt of written judgment and amend the grounds if required).

(b)    The IAA accepted that the Appellant’s aunt was abducted, detained and interrogated in January 2009;

(c)    The IAA accepted that the Appellant was abducted detained and interrogated in January 2009;

(d)    Father had gone missing;

(e)    The Appellant’s other family members were involved with LTTE.

(f)    The Authority has failed to give cumulative consideration to the LTTE activities and did not ask correct questions.

(g)    The Authority fell into jurisdictional error.

Ground 3

His Honour should have found that the IAA made a jurisdictional error in considering the Appellant’s return. The First Appellant was required to report daily and someone who had LTTE connections (parents, auntie) who left Sri Lanka illegally. The Appellants (in particular First Appellant) are not ordinary persons returning to Sri Lanka who had left illegally (IAA at [54]). The Appellant’s role with the NGO was not given realistic consideration. The finding that the First Appellant did not have a profile (IAA at [50] is illogical, irrational and / or unreasonable.

Particulars

(a)    His Honour should found that the IAA erred in its findings at [50]. The IAA accepted the Appellant was required to report daily prior to his departure from Sri Lanka illegally and had various familial link. (and thus made findings that were different to the delegate’s findings constituting new information that would be reason, or a part of the reason for affirming the fast track reviewable decision (the Appellant has not been provided written reason and will provide further particulars upon receipt of written judgment).

(b)    The Appellant had visible scarring. There was no realistic / intellectual engagement / consideration of the risk to the Appellant.

26    At the hearing the appellants’ counsel informed the Court that he did no press particular (b) of ground 3.

Ground 1

27    Ground 1 concerns the primary judge’s findings in relation to ground 5 below.

Appellants’ submissions

28    The appellants submitted that they claimed they faced a risk of harm because of the Husband and Wife’s inter-caste marriage which did not turn on hierarchy but on the fact that their inter-caste marriage created problems for them from various perspectives and that the Authority misapprehended the claim as one arising from a marriage between someone from a higher caste to someone from a lower caste. They submitted that the crux of the claim was that their inter-caste marriage created problems between their respective families.

29    The appellants submitted that the Authority asked itself an incorrect question by addressing a different question being “that between the higher caste and lower caste”. The appellants said that their claim turned on the fact that there was friction with the Wife’s former husband in the context of the whole family. They contended that the Authority, in finding that the Husband was not credible based on minor inconsistencies such as the time of their marriage and where the Husband and Wife lived, rejected the claim. They contended that their claim was that the Husband was at risk of harm from the Wife’s family and her former spouse and his family because of the inter-caste marriage.

30    In oral submissions, counsel for the appellants clarified that their submission was that the Authority failed to consider the future possibility of risk to the Husband from the Wife’s former husband who was not happy about the inter-caste marriage. The appellants relied on the submission dated 17 March 2017 provided by the Husband’s authorised representative to the Department of Immigration and Border Protection (March 2017 Submission) where, in relation to the inter-caste marriage, it was said that the Wife was expected to marry a man within her own caste and this disobedience resulted in her losing financial support from her brother and “[i]t also explains why [the Wife’s] previous husband and his family, would seek revenge upon [the Husband] because they would have felt disrespected, insulted and ashamed that [the Wife] would choose a man of a lower caste”. The appellants contended that this claim was not considered.

31    The appellants submitted that the primary judge should have found that the Authority had not dealt with their claim in the context of the three families that could potentially persecute them. They further submitted that the Authority accepted the country information but failed to engage with that country information as regards the Wife’s former spouse and whether he would expose the Husband and Wife to harm because of the Stepsons being in the Husband’s household.

Consideration

32    The Husband’s claim arising out of his inter-caste marriage is made:

(1)    first, in his statement accompanying the application for the SHEV, where he states:

In August 2016, one of my friends was approached by the CID, who had received information from my wife’s ex-husband’s family. They were trying to get revenge because [the Wife] and I are from different castes and should not be married. This friend was the one who made arrangements for me to come to Australia and the CID tortured him, asking him of my whereabouts. After this incident, my friend also left Sri Lanka to go to another country to flee persecution. I do not know which country my friend went to, however, it was from this foreign country that he contacted me to know of what had happened. My friend is also a Tamil.

(2)    secondly, in the March 2017 Submission which:

(a)    repeated the Husband’s claim set out in the preceding subparagraph; and

(b)    after setting out an explanation of the caste system in Sri Lanka and a description of the respective castes of the Husband and Wife, stated:

Therefore, it is understandable why [the Wife], spouse to [the Husband], family and previous husband disagreed with their marriage as it was not permitted for [the Wife] to marry a man of a lower caste system. [The Wife] was expected to marry a man within her own caste and this disobedience resulted in [the Wife] losing financial support from her brother. It also explains why [the Wife’s] previous husband, and his family, would seek revenge upon [the Husband] because they would have felt disrespected, insulted and ashamed that [the Wife] would choose a man of a lower caste. This lead to [the Wife’s] previous husband, and his family, becoming informants to the CID regarding [the Husband’s] whereabouts. This is another reason why [the Husband] cannot return to Sri Lanka because even if he were to somehow enter the country undetected, which is impossible, [the Wife’s] previous husband, his family and associated connections would intentionally expose [the Husband’s] location to the CID. [The Husband] would be detained and tortured by the CID.

33    There are two claims articulated. First, that the Wife’s family disagreed with the marriage as she was expected to marry into her own caste and that in marrying the Husband, who is from a lower caste, she lost her financial support. Secondly, that the Wife’s former husband and his family would seek revenge because they felt “disrespected, insulted and ashamed” causing them to become informants to the CID about the Husband’s whereabouts. That is, the Wife’s former husband would seek revenge by reporting the Husband to the CID because he and his family felt disrespected and insulted by the Wife marrying into a lower caste.

34    The Authority summarised the Husband’s claims, insofar as he referred to issues arising from his marriage, at [8] of its decision record as follows:

•    The [Wife’s] family, including her former husband, are using the CID to get revenge on the [Husband] and [Wife] because the [Husband] is from a lower caste. The CID continue to search for the [Husband], and have his photograph and a signed confession on file.

…

•    The [Husband] also fears the [Wife’s] family, including her former husband, will seriously harm him, or get the CID to do so on their behalf.

35    The Authority addressed the inter-caste marriage claims in its decision record as follows:

(1)    at [31] it referred generally to the claim and to the information provided in the March 2017 Submission about the Husband and Wife’s respective castes and the caste system:

I also have serious concerns with the [Husband’s] evidence regarding the [Wife’s] family, including her former husband. During the TPV interview the [Husband] advised the delegate that because his wife is from a higher caste than himself, her family disapprove of their marriage. In the post-TPV interview written submission, the [Husband’s] then representative provided information that the[Husband] is from the Nelawer caste, who are considered ‘unclean’, and that the [Wife] is from the Kowiyer caste, who are considered ‘clean’ and therefore superior. The post-TPV interview written submission also contains country information regarding the strict caste hierarchy in the Tamil community of northern Sri Lanka.

(2)    at [32]-[33] the Authority considered the claim about the Wife’s brother providing financial support and identified inconsistencies in the evidence in relation to that issue. It also did not accept that the Wife’s parents would only have discovered the marriage four years after it took place. The Authority found the inconsistencies in the evidence on these issues to be significant and that they further detracted from the Husband’s overall credibility. At [34] it concluded:

For these reasons I do not accept that in late 2012, residents of Manthuvil, or the [Wife’s] family, advised the CID the [Husband] was living in Vavuniya because they disapproved of the marriage …

(3)    at [36] the Authority referred to the information provided to the delegate concerning the Wife’s former husband, namely that: the former husband wishes to regain custody of the Stepsons; gave the Husband’s details to the CID; has contacts in Australia who inform about the Husband; and that, as a result, the CID threatened and tortured the Husband’s friend in Sri Lanka, who was then forced to flee. At [37] the Authority concluded:

I consider the [Husband’s] evidence in this regard lacks credibility. Although the [Husband’s] written TPV statement indicates the CID harmed his friend in 2016, when the delegate asked him about this matter he did not know when it occurred.

(4)    at [38] the Authority drew its conclusion about the claims arising from the inter-caste marriage between the Husband and Wife, addressing both the claim to fear harm from the Wife’s family and the claim to fear harm from the Wife’s former husband, as follows:

38.    In light of my finding that the [Husband] is not of interest to the Sri Lankan authorities for any reason, I do not accept the CID would torture his friend at the request of the [Wife’s] former husband, or that he would harm the [Husband] if he returned. I do not accept that because the [Husband] and [Wife] are from different castes, people in the Manthuvil community want them to disappear, as the [Husband] has claimed. Overall I am not satisfied the [Husband] faces a real chance of harm from the family of the [Wife], including her former husband, because they are from different castes, because the [Husband] is the stepfather of the [Stepsons], or for any other reason.

(emphasis added.)

36    As can be seen from the passages summarised above, the Authority considered the Husband’s claim that he feared harm both from the Wife’s former husband and her family because of the inter-caste marriage:

(1)    it referred to the fact that the Husband and Wife are from different castes;

(2)    it found the Husband’s evidence about his mistreatment by the Wife’s family to be problematic and set out the evidence and the inconsistencies in that evidence on which it based that conclusion;

(3)    it did not accept that the Wife’s family would have reported the Husband’s whereabouts to the CID because they disapproved of the marriage;

(4)    it found that the Husband’s evidence about the Wife’s former husband reporting his whereabouts to the CID lacked credibility; and

(5)    it did not accept that the Husband faces a real chance of serious harm from the Wife’s family, including her former husband, because the Husband and Wife are from different castes or because the Husband is the stepfather of the Stepsons.

37    The Authority did not misdirect itself as alleged by the appellants and there was no error on the part of the primary judge in making his finding that the Authority’s reasons did not reflect a misunderstanding of the Husband’s claims.

38    Ground 1 is not made out.

Ground 2

39    Ground 2 concerns the primary judge’s findings in relation to ground 2 below. As clarified by counsel for the appellants in oral submissions, by this ground the appellants contend that the primary judge erred in not holding that the Authority failed to give cumulative consideration to the Husband’s claims about his association with the LTTE.

Appellants’ submissions

40    The appellants submitted that the primary judge should have found that the Authority engaged with their claims in relation to the LTTE in isolation. The appellants further submitted that the Authority identified the claims and dealt with them in a simplistic way and failed to recognise their complexity.

41    The appellants noted that the Authority accepted that the Husband’s father and uncle were involved with the LTTE and that the Husband’s aunt was abducted, detained and interrogated in January 2009. The appellants submitted that the Authority failed to engage with the LTTE activities of the family and to give cumulative consideration to the risk to the appellants and to ask the correct question. In doing so the appellants contended that the Authority committed jurisdictional error and that the primary judge should have found that to be the case.

Consideration

42    The primary judge did not err as alleged.

43    At [8] of its decision record the Authority set out the Husband’s claims in relation to his family’s involvement with the LTTE as follows:

•    In January 2009 the [Husband’s] aunt was abducted by the [LTTE].

•    A few days later, the [CID] took the [Husband] to their camp where they tortured and interrogated him overnight about his aunt, and accused him of being an LTTE supporter/member.

…

•    After the family’s arrival in Australia, the applicant’s uncle, who had previously been detained in a camp for LTTE supporters, told him that his father had gone missing while in the service of the LTTE.

44    At [17]-[21] of its decision record the Authority effectively accepted all of the Husband’s claims about his and his family’s involvement with the LTTE. In summary it accepted that:

(1)    the Husband was raised by his maternal aunt because his parents were both with the LTTE and he had not seen his parents since he was a young child. The Authority noted that the Husband had explained to the delegate that his father was in the LTTE’s political division and his mother was in charge of a team of LTTE combatants;

(2)    since the Husband had been in Australia his paternal uncle had been released from an camp for former LTTE supporters;

(3)    the Husband was an LTTE supporter but, on the evidence, the Authority found his involvement to be low level;

(4)    the Husband did not know about his parents’ history with the LTTE until after his arrival in Australia, although the Authority considered the Husband’s evidence in that regard to be “somewhat implausible”;

(5)    in January 2009 the LTTE forcibly recruited the Husband’s aunt and the Husband does not know what happened to her;

(6)    several days after his aunt was recruited the CID detained the Husband and interrogated him about his aunt and where the LTTE had hidden weapons and accused him of being an LTTE supporter; and

(7)    after the Husband was released he was required to report to the CID camp daily.

45    Given the Husband’s lack of profile, the Authority did not accept that the CID would have a renewed interest in him in late 2012 or early 2013 because he had breached his reporting requirements in 2009 before the end of the civil war. The Authority was satisfied that the Husband did not have a record as a result of his interactions with the CID in Jaffna in January 2009 and he could thus settle in Vavuniya and reside there for four years without encountering any issues with the authorities: at [35].

46    Commencing at [40] of its decision record the Authority considered the Husband’s claim to fear harm as a result of his connection to the LTTE. At [40] the Authority referred to the 2012 UNHCR Guidelines. At [41] the Authority noted that at that time the UNHCR had identified those with familial links to the LTTE as potentially being in need of protection. The Authority also noted that it had accepted that members of the Husband’s family were involved with the LTTE; in 2009 he was detained by the CID overnight, interrogated and accused of being from an LTTE family; and the Husband reported to the CID camp every day as required until his decision to leave for Vavuniya in March 2009. However, the Authority also noted that the Husband’s evidence regarding his time in Vavuniya was contradictory and found that his claims that in 2012 the authorities resumed an interest in him and had been targeting him since to be not credible.

47    At [43] of its decision record the Authority considered the Husband’s claims about the LTTE cumulatively. It concluded that “[o]verall I am satisfied that at the time of the [Husband’s] departure from Sri Lanka, the CID did not have any ongoing interest in him for reason of his own, or his family’s, involvement in the LTTE”. At [46] the Authority then drew an overall conclusion, again based on a cumulative consideration of the claims. In that regard in relation to the Husband’s claims to fear harm because of his family’s and his LTTE involvement the Authority said “I am not satisfied the Sri Lankan authorities have, or will have, any continuing interest in the [Husband] because of his Tamil race, his age, his origins, his familial LTTE links, his low-level LTTE assistance, his failure to report as required in 2009, or his scarring” (emphasis added).

48    In those circumstances, when the decision record is read as a whole, the Authority considered the Husband’s claims to fear harm because of his familial connection to the LTTE both individually and cumulatively. There was no error in the primary judge’s findings in this regard. Ground 2 is not made out.

Ground 3

49    Ground 3 concerns the primary judge’s findings in relation to ground 3 below. The appellants contend that the primary judge erred in considering the Husband’s illegal departure from Sri Lanka and that his Honour should have found that, because of the Husband’s previous reporting requirements, he would be in a different category of returnees.

Appellants’ submissions

50    The appellants submitted that the Sri Lankan authorities required that the Husband report to the CID daily, a requirement that continued and which was not revoked when the war ended. They further submitted that the Authority accepted that the Husband was required to report daily prior to his illegal departure from Sri Lanka and the Husband was still required to report when he left Sri Lanka.

51    The appellants contended that the Husband was required to report daily and he would need to explain his failure to report. They said that the Authority made a jurisdictional error when considering his return as the Husband was not an ordinary illegal departee returning to Sri Lanka. The appellants submitted that the Authority’s finding at [50] of its decision record that the appellant did not have a profile is illogical, irrational and/or unreasonable given that, well after the war ended, the Husband was still required to report to the CID.

52    The appellants also submitted that the Authority erred in its consideration of the Husband’s links to the LTTE and failed to address whether the appellants could be the subject of harm on their return to Sri Lanka because it failed to take account of the relevant relationships.

Consideration

53    The gravamen of the appellants’ argument is that, in considering their claim to fear harm because they departed Sri Lanka illegally, the Authority failed to consider the impact of the Husband’s reporting requirement which they said was ongoing at the time of his departure and which they contended put him in a different category of failed asylum seeker returning to Sri Lanka.

54    As explained at [45] above, in the context of my consideration of ground 2, the Authority did not find it credible that the CID would be interested in the Husband in late 2012 or early 2013 because he breached his reporting requirements in 2009, prior to the end of the civil war. At [46] of its decision record the Authority concluded that it was not satisfied that the Sri Lankan authorities have or will have any continuing interest in the Husband because of, among other things, his failure to report as required in 2009.

55    The Authority then turned to consider whether the appellants would face a real chance of serious harm as returning asylum seekers who departed Sri Lanka illegally. At [50] of its decision record the Authority referred to the March 2017 Submission in which it was contended that the Husband has a profile with the CID and that, while he may not be detained on arrival in Sri Lanka, that may occur after he leaves the airport. The Authority continued:

50.    … DFAT notes however that returnees are usually questioned at the airport, where their fingerprints and photographs are taken, and that in most cases any individuals of interest are arrested at this time. I have found the applicant does not have a profile with the authorities and there are no credible reasons before me to indicate that they would target the applicant at Colombo airport or afterwards.

56    In referring to its findings about the Husband’s lack of profile, the Authority must be taken to be referring to its findings at [30], [35] and [46] of its decision record.

57    After referring to the country information and the process applied by the Sri Lankan authorities where persons departing illegally are charged under the Immigrants and Emigrants Act, including in relation to children, at [54] of its decision record the Authority relevantly said:

… Although I have accepted the applicant failed to report to the CID camp in Jaffna as required, where his photo and personal details were on record, there is no credible evidence before me that the applicants were anything other than ordinary illegal departees from Sri Lanka at the time of their departure in May 2013. Accordingly, while I accept there is a real chance the applicant and applicant wife will be questioned, fined, and held briefly as part of the re-entry process, I do not accept they would face greater scrutiny or penalty upon return than other illegal departees. On the evidence before me I am not satisfied that any routine questioning at the airport upon return, which all illegal departees undergo, amounts to serious harm.

58    Contrary to the appellants’ submission, the Authority did have regard to the Husband’s particular circumstances. It had regard to its findings that the Husband did not have a profile with the authorities and, in drawing its conclusion at [54], it expressly referred to the Husband’s failure to report to the CID camp in Jaffna. However, because of the Husband’s lack of profile, the Authority was not satisfied that the Husband and Wife were other than ordinary persons departing illegally when they left Sri Lanka in 2013 and it did not accept that they would face greater scrutiny or penalty than other returnees.

59    When the Authority’s reasons are read as a whole it is clear that it had regard to the Husband’s circumstances in making its finding that the appellants would not face serious harm upon their return to Sri Lanka as failed asylum seekers who left Sri Lanka illegally. There is nothing illogical, irrational or unreasonable in the Authority’s reasoning. It follows that there is no error in the primary judge’s treatment of ground 3 below.

60    For those reasons ground 3 is not made out.

conclusion

61    The appellants have failed to make out any of their grounds of appeal. Accordingly the appeal should be dismissed. As they have been unsuccessful the Husband and Wife should pay the Minister’s costs as agreed or taxed. I will make orders accordingly.

Associate:

Dated:    12 June 2019

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